In his dissent from today’s Supreme Court ruling, Lawrence and Garner v. Texas, which strikes down the sodomy laws of Texas and overturns Bowers v. Hardwick, Justice Scalia writes that the decision has much broader legal implications. Of course Scalia regrets everything about the decision, but according to him,
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
It’s nice to know that on the grounds of logic and principle, not to mention stare decisis, Scalia will be inclined to support gay marriage, should the issue reach the Supreme Court. I’m not quite sure, however, how I feel about the tonal quality of “coos,” as a word choice.